On The Radar
In its formal response to Wisk Aero’s allegations of intellectual property theft, Archer Aviation’s legal team this week told the U.S. District Court for the Northern District of California that there is no case to answer. Archer's 62-page document, filed on June 1, argues that the plaintiff has failed to detail and provide clear evidence that it stole trade secrets for the design of its four-passenger eVTOL aircraft, “despite page after page of reckless innuendo and rank speculation.”
Essentially, Archer says Wisk is jealous of its claimed “runaway success” and the lawsuit is no more than a wrecking tactic to derail its rival. “This case has nothing to do with the design of Archer’s aircraft and everything to do with the success of Archer’s business—and the failure of Wisk,” said the filing, which is rich in robust rhetoric that doesn’t seem to leave the door open for an out-of-court settlement before the trial is due to begin on July 7. Both Archer and Wisk have said that they want the case to be tried by a jury.
For independent observers, the most interesting aspect of the new court filing is probably the summary of Archer’s history. In fact, this is directly relevant to the case since Wisk—which via its joint owners Kitty Hawk and Boeing has been in the eVTOL game for more than a decade—is essentially accusing Archer of being an interloper that could not possibly have made such rapid progress in developing an aircraft without foul play.
The Archer story narrated in the court filing starts in October 2018 when Brett Adcock and Adam Goldstein incorporated the start-up and jointly funded the “Archer Aviation eVTOL Lab” at their alma mater, the University of Florida. Eleven months later, the duo, who had sold their Vettery recruitment platform for $100 million, enlisted the support of Portland, Oregon-based FlightHouse Engineering, which has experience developing unmanned air systems and had contributed to Airbus’s Vahana eVTOL technology demonstrator. The filing includes drawings and technical details for Archer’s aircraft with 12 wing-mounted rotors, six of which tilt, underlining its claim that this design was developed independently and was being advanced before the first of 17 former Wisk employees jumped ship to join Archer. Today Archer’s team consists of 75 engineers.
The HR aspects of the tensions between the litigants are crucial to the case. In its counter-filing, Archer directly rebuts any suggestion that it was complicit in any alleged theft of trade, explaining that it had its legal team out in place, “a robust recruiting and onboarding process to ensure that no trade secret came over with the new employees.” The filing includes a pre-hire document explaining the company’s policy on trade secrets.
Archer didn’t recruit only from Wisk’s payroll. In early 2020, it hired numerous engineers from organizations including Airbus, Joby, NASA, Aerion, and Tesla. Among these was Geoff Bower, former chief engineer for Airbus’s Vahana project and it was he, says Archer, who approved the adoption of the so-called “12-tilt-6” design progressed by FlightHouse Engineering.
However, in tandem with the civil lawsuit, the FBI and Department of Justice are engaged in a criminal investigation relating to allegations that former Wisk employee Jing Xue stole almost 5,000 data files just a couple of weeks before joining Archer. While the outcome of this investigation could have a direct bearing on the civil case, Archer insists there is no evidence that it received any secrets. In a recent blog, Wisk implied that it believes other former employees may also have taken patented information to Archer, but the federal authorities have given no indication that they have widened the investigative net.
The court filing provides a helpful summary of the early stages of Archer’s history before May 2020 when the company came out of stealth mode by publishing renderings of its Maker eVTOL prototype. Earlier this year, it announced a partnership with automobile group Fiat-Chrysler (Stellantis) and then plans for a $1.1 billion IPO merger with Atlas Crest Investment Corp, which is due to close by the end of June.
Archer says without providing evidence that Wisk’s business is “reportedly in trouble,” and at the same time accuses its rival of mounting a PR campaign against it based on innuendo and false statements. Sources close to the case point to Boeing’s September 2020 announcement that it would close its Boeing NeXt innovation unit. However, Wisk’s management team has since stated on the record that Boeing remains committed to the joint venture and, at least publicly, does not appear to be trying to find new backers to advance its eVTOL aircraft developments.
For its part, Wisk has pushed back against Archer’s argument that its lawsuit, filed on April 6, has failed to detail the trade secrets allegedly stolen and to present direct evidence that these have been used in the development of Archer’s aircraft. Responding to Archer’s June 1 filing, which also includes a countersuit and motion to dismiss the case, Wisk pointed to its preliminary injunction filing on May 19, which it said detailed 52 specific trade secrets, although they are redacted in the published version of the document.
The Archer filings also address a long list of allegations made by Wisk, including references to public statements by its founders in which they seemingly acknowledge the influence of Wisk’s designs on their program. Archer’s lawyers essentially argue that these statements and others have been willfully taken out of context and distorted to suit the purposes of Wisk’s case.
Most of the new wave of eVTOL start-ups have been guilty of cringe-worthy self-promotion in their sharp-elbowed scramble to get ahead of the gold rush. But 32-month-old Archer’s claim in its court filing to be “one of the leading aerospace companies in the world” will seem hysterically hyperbolic to almost anyone who has followed the industry since before the 21st century or even the 2010s. It’s too bad the Wright brothers and Charles Lindbergh aren’t available to appear as expert witnesses in the case.